BOSTON (CN) — U.S. immigration authorities can once again arrest undocumented immigrants in Massachusetts courthouses, the First Circuit ruled Tuesday in overturning a preliminary injunction barring the arrests.
Courthouse arrests have been a hot-button issue ever since the Trump administration issued an order in early 2017 authorizing them, overturning a contrary policy of the Obama administration.
The suit brought by two state district attorneys says the order made their jobs harder because it deterred crime victims and witnesses from coming to court and testifying.
“Women have accepted near-fatal domestic abuse rather than going to court and risking civil arrest,” argued the plaintiffs’ lawyer, David Zimmer of Goodwin Procter in Boston.
But the government responded that courthouse arrests protect the public because immigrants pass through a metal detector when they enter a courthouse and thus there is no likelihood that they will resist arrest with a weapon.
Tuesday’s ruling doesn’t end the dispute. It merely allows the arrests to continue pending further litigation.
“It is not for us to say whether ICE's strategy is sound public policy,” noted U.S. Circuit Judge Bruce Selya, a Ronald Reagan appointee, in the unanimous three-judge opinion. “That question lies within the domain of the politically accountable branches of the federal and state governments.”
But one of the judges, fellow Reagan appointee Juan Torruella, said during oral argument that he had a “dislike for this whole procedure.”
The case applies only to civil arrests for immigration infractions. There is no question that federal authorities can make criminal arrests if an undocumented person commits some other offense.
According to the district attorneys, the 1952 law authorizing ICE to conduct civil arrests implicitly incorporated a centuries-old common-law rule against civil arrests in courthouses.
In June 2019, U.S. District Judge Indira Talwani, a Barack Obama appointee, agreed with this argument and issued a preliminary injunction.
But the Justice Department claimed that the common-law rule was “dead” by 1952 because it was intended for service of process — a procedure that hadn’t been conducted by means of civil arrest since the 1940s.
The First Circuit picked up on this point and noted in particular that there was very little evidence that the common-law rule applied to arrests by the government as opposed to private parties.
“The plaintiffs do not identify a single treatise or article directly stating that the common-law privilege extended to civil arrests on behalf of the sovereign,” Selya wrote for the panel.
Selya said the plaintiffs’ argument amounted to “attenuated analogies and speculative inferences” and added that the law “does not give courts carte blanche to read a grab bag of common-law rules into federal statutes simply to effectuate what those courts may perceive as good policy.”
The plaintiffs also argued that the 1952 statute didn’t authorize courthouse arrests if they violated state law. But Selya said Massachusetts law is unclear on this issue and Talwani’s opinion didn’t address it. So the panel sent the case back to Talwani to develop this point.
In November 2017, the Massachusetts Trial Court adopted a policy in which court officials were instructed neither to help nor to hinder ICE in making courthouse arrests, which the government said was evidence that the arrests are acceptable under Massachusetts law.
But at oral argument, Zimmer claimed the Trial Court had adopted the policy under duress and that, like many other states, Massachusetts would bar the arrests if it could.
“ICE has literally broken down the doors of New York courthouses to make arrests,” he stated.
U.S. Circuit Judge William Kayatta, an Obama appointee, rounded out the panel.
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